Radical Rupture

The Constitution has become something different than what it once was. It used to be an actual document, something written on paper, solid and unchanging. Now, according to American constitutional law, it is a living entity that develops over time in order to respond to the needs of a changing society. How exactly did this document acquire the changeability of a living being?

The usual narrative points to the New Deal, when judges appointed by Franklin Delano Roosevelt abandoned all constitutional constraint of the powers of the federal government to regulate the economy. Drawing on the ideas of Darwin and Hegel, Progressive Era legal theorists had advanced the notion of an organic, evolving Constitution. The Depression provided the judiciary with the warrant to enact this once-radical notion by invalidating the due process clause’s protection of private property and the federalist vision of the framers. From then on, jurists have appealed to the idea of a “living Constitution” to explain how the document retains relevance and authority despite the Supreme Court’s having enslaved it to the changing desires of the electorate.

In The Evangelical Origins of the Living Constitution, John W. ­Compton argues that the idea of the living Constitution has a much longer history that began with nineteenth-century Evangelicals. Following the revivals of the early nineteenth century, large numbers of Evangelicals joined together to abolish slavery, drinking, and gambling—evils involving constitutionally protected “property” and contracts. Before the Civil War, the courts generally resisted the moral reformers’ efforts to alter the interpretation of the Constitution in order to permit the seizure of immoral property.

However, by the late nineteenth century, the Supreme Court had begun to bend the rules to accommodate moral reform, all while continuing to appeal to the Constitution to repudiate economic reforms such as child labor laws, wage and price controls, or unionization. Ultimately, the disjunction between the court’s approach to moral and economic reforms proved untenable. New Deal jurists pointed to the court’s willingness to accommodate constitutionally dubious moral reforms to demonstrate the ultimate subjectivity of judicial decisions and the need for constitutional interpretation to evolve along with social and economic realities.

The line from nineteenth-­century Evangelicals to the New Deal–era embrace of the idea of the living Constitution is not as direct as Compton’s intentionally provocative title suggests. His Evangelicals did not advance new theories of constitutional interpretation, nor did the landmark decisions on moral reform lead directly to New Deal jurisprudence. However, by refusing to ­submit to “the democracy of the dead,” (Chesterton’s words, not Compton’s), nineteenth-century Evangelicals did, in ways Compton suggests but does not fully clarify, take a first crucial step toward the idea of a “living ­Constitution.”

Compton begins by noting the vast distance between the perspective of the framers and that of ­antebellum Evangelical reformers. Rather than founding the nation on shared moral or religious ideals, the framers looked to economic self-interest and ­self-preservation to unify the new nation. They designed the government so as to bolster national security, “commercial prosperity,” and private property. What Compton describes as an “enervated” Protestantism, weakened by denominational divisions and a lax approach to public morality, could not turn the national will to religious or moral purposes.

All of this changed with the revivals of the early nineteenth century. Church membership increased dramatically, particularly among Methodists and Baptists, whose belief in the possibility of moral perfection generated renewed ­interest in national morality. Determined to root out national sins like slavery, liquor, and lotteries, Evangelicals joined together in ecumenical reform ­societies.

Because they conflicted with traditional approaches to vice and demanded the destruction of property and contracts, the Constitution hampered Evangelical battles against gambling and liquor. (Compton explains that because slavery was abolished through formal amendments, abolitionism did not have the same impact on constitutional interpretation as did anti-lottery and anti-liquor campaigns.)

In early American society, the lottery had been accepted as a means of channeling the immoral urge to gamble in a safe, publicly beneficial direction. In order to fund public projects, states often issued grants to private entities allowing them to collect drawings until a given sum had been raised. Since the early Fletcher v. Peck and Dartmouth College cases, contracts between states and private entities that involved “vested” property rights had enjoyed protection under the contract clause. Repealing lottery grants was therefore a constitutionally perilous endeavor.

Attempts to curtail the sale of liquor also diverged from traditional means of regulating vice in ways that raised troubling constitutional issues. The goal of early American liquor regulation was not to minimize liquor consumption, but to ensure that taverns and inns remained safe and unthreatening to the social order (for instance, by prohibiting sales to servants and slaves without the permission of their masters). Once granted, a license to sell liquor was taken to be a form of private property that could not be revoked except in cases of egregious misuse. By demanding that their states revoke liquor licenses, temperance reformers risked denying individuals their constitutional right to due process. Evangelical activists weren’t just asking for people to stop drinking alcohol; they were asking the government to destroy an entire class of ­private property.

Aside from a few cases in which state courts upheld prohibition laws (decisions which Compton attributes to the reformist pressures applied in these states by a newly organized Republican party), antebellum courts rejected on constitutional grounds all legislative efforts to prohibit the sale of liquor or to alter lottery grants. It wasn’t until the 1880s that the Supreme Court began to abandon traditional constitutional interpretation to clear the way for popular moral reforms.

In Stone v. Mississippi,the court determined that the state’s inalienable power to regulate public morality trumped the constitutional rights of lottery grantees. In Mugler v. Kansas,it declared that confiscating liquor without compensation did not violate the Fourteenth Amendment’s guarantee of due process because liquor was inherently “noxious” and therefore not subject to constitutional protection. Compton demonstrates that after the Muglerand Stonedecisions, it became increasingly difficult for the court “to explain why any police measure backed by a democratic majority should be subjected to constitutional limitation.”

By the end of the nineteenth century, lottery and liquor reform movements were applying increasing pressure to the federal system of governance. The Constitution gave the federal government the power to regulate interstate commerce but reserved for the states all “police powers” to regulate private economic transactions. Basically, the states lacked the power to interfere with interstate commerce in liquor, while the federal government lacked the power to outlaw lotteries or liquor. As a result, even if just one state permitted these moral evils, no state could effectually outlaw liquor or gambling within its borders.

In the 1890s, Congress addressed this impasse by passing laws permitting the states to ban imported liquor and making it a federal offense to transport lottery tickets across state lines. Departing entirely from tradition and precedent, the Supreme Court upheld both pieces of legislation. These decisions gave Congress the power to contract or expand the category of “commerce” as it saw fit; to declare alcohol, traditionally ­considered a commodity, irrelevant to interstate commerce and thus a matter for the states to deal with; or, in Champion v. Ames, to deem lottery tickets, traditionally not considered a commodity, commercial items subject to regulation by the federal government. The court had proved willing to adjust the boundaries of the federal system to accommodate demands for regulation.

Dissenting from the Championruling, Chief Justice Melville Fuller issued a prescient warning that, having adopted the notion that the nation’s “fundamental law is flexible,” the court would be met with constant demands to “ease the shoe where it pinches” until nothing resembling the vision of the Constitution remained. Fuller was spot-on, but the process took a few decades. As Compton carefully explains, the court’s rulings on moral reform did not lead directly to the New Deal decisions that dealt the final blow to constitutional limitations on federal power. Rather, they created “embarrassing doctrinal tensions,” especially when contrasted with early twentieth-century decisions invalidating economic reforms like minimum wage laws and child labor restrictions.

Progressive legal theorists exploited this doctrinal disjunction to argue that the justices’ opposition to economic reforms was fundamentally ideological and thus illegitimate: “If the public’s evolving attitude towards liquor and lotteries had been sufficient to justify a rethinking of economic rights and federalism constraints, the argument went, then what else but the subjective policy preferences of the justices themselves could explain the Court’s stubborn resistance to other, broadly popular forms of ‘social’ legislation?”

Compton admits that the progressives’ arguments were “sometimes outlandish.” Not content merely to question the legitimacy of particular rulings, theorists like Oliver Wendell Holmes Jr. and Robert Lee Hale pointed to the example of the lottery and liquor decisions to argue that traditional legal categories like “commerce,” “due process,” “police power,” or “public” were essentially meaningless. Such terms were “simply an empty vessel for whatever regulatory policies happened to enjoy majority support at a particular moment in history.”

By the early 1930s, Compton notes, a significant portion of the legal community had decided that traditional constitutional protections of economic rights were legal relics. In the context of the economic crisis of the Great Depression, the moral reform precedents lent credibility to a radical understanding of the Constitution. The New Deal–era decisions made official a process that had already been completed. In Home Building and Loan Association v. Blaisdell, the majority explicitly endorsed the idea that the interpretation of the Constitution should reflect “the vision of our time” rather than the intent of the framers.

Compton’s title obscures the actual causality in his story. The crucial step leading to the embrace of the living Constitution—the determination that the Constitution’s legal categories have no substantive meaning that can serve to limit the legislative will of the majority—actually happened in the twentieth century. It wasn’t Evangelicals who took this decisive step, but progressive legal theorists and New Deal–era judges. Advocates of a living Constitution did not support or build upon the court’s decisions concerning moral reform. Having broken with the Evangelical understanding of liquor and lotteries, they no longer felt the imperative behind these decisions.

Their argument wasn’t just “the court did x, so why not also y?,” which would have led to more questionable precedents, but not necessarily to the destruction of traditional interpretation. They also reasoned that the Constitution has always been used to support subjective desires—so why shouldn’t we use it for our purposes? What proved to be the greatest enemy of a traditional approach to the Constitution wasn’t just bad precedent, but the experience of moral change: that is, the feeling of one generation that it occupied a different moral universe than did previous generations. How could a founding document from colonial America exercise authority when truth and morality had so clearly shifted with experience?

Decades before American legal scholars abandoned traditional constitutional interpretation, American biblical scholars had already abandoned traditional biblical interpretation, and for similar reasons—namely, the belief that truth and law are inevitably mediated by historical experience. In both cases, the experience of profound moral change proved corrosive. Abolitionist Evangelicals in particular adopted a moral vision that entailed a radical rupture with the past. Even if antebellum Evangelicals did not create the idea of a living Constitution, it could be said that by rejecting the continuity of human moral experience, they took a first necessary step towards it.

Then as now, the basic impetus behind the idea of a living Constitution (or liberal biblical hermeneutics) is denial that a document written so long ago and in such a different world should be permitted to limit our actions today. The meaningfulness of our Constitution hinges on faith in the fundamental continuity of experience across generations. We need our Constitution to be living only when we believe that the truth of previous generations is dead.

Molly Oshatz is the author of Slavery and Sin: The Fight Against Slavery and the Rise of Liberal Protestantism.